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Article 50 – A tricky timeline

Much has been written about how the giving of notice by the UK under Article 50 of the Treaty on European Union will trigger a two year guillotine period leading to its withdrawal. However, a careful reading of Article 50 leads to a more subtle timeframe. The relevant provisions are paragraphs 2 and 3, which read as follows:

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

There a number of key dates which need to be born in mind:

The first key date is the one on which (as detailed in an earlier blog post) the UK gives the notice to the European Council: that is the one key date which is within the UK’s sole control.

There has been some debate as to whether that notice is revocable – at best, the issue is unclear (see earlier blog post). One solution to the uncertainty might be for the UK to request that the European Council agree the circumstances (if any) under which that notice could be revoked as a condition to the UK serving notice.

Following the giving of that notice, the Union is obliged to negotiate the withdrawal agreement with the UK “in the light of guidelines provided by the European Council”. It is unclear what these guidelines should consist of, and whether they would be substantive or purely procedural. However, it would be reasonable for the UK to demand that these guidelines are agreed before the Article 50 notice is given.

Following Article 50 notice, the European Council must negotiate a withdrawal agreement “taking account of the framework for [the UK’s] future relationship with the Union”. In principal, there are two agreements here – the agreement on the terms of the UK’s withdrawal from the EU (the “exit agreement”) and the framework agreement for future relations between the UK and the EU. The language of Article 50 supposes that they will come into existence simultaneously. However, it also supposes that the definitive agreement between the UK and the EU as to their future relationship (the “definitive agreement”) will be concluded subsequently.

The question of what the relationship between the UK and the EU will be in the interim period between the date of the exit agreement and the conclusion of the definitive agreement will need to be agreed, and, presumably will form part of the framework agreement. There are a number of possibilities:

the UK continues to be treated as if it were a Member State, effectively suspending the exit agreement;

the UK withdraws, leaving the UK and the EU in a WTO regime, which would be unpalatable to most participants; or

the UK and the EU enter into an interim agreement designed to protect their economies from the negative consequences of the WTO solution, for example based on EEA membership for the UK, during which the definitive withdrawal agreement is agreed and the UK can commence negotiating bilateral trade agreements.

Finally, the EU Treaties will cease to apply to the UK two years after the Article 50 notice is given if no withdrawal agreement is concluded beforehand, unless the European Council unanimously agrees to extend that period. Given the problems that can be foreseen in concluding the agreements within two years, the UK may consider requesting an extension of the two year period to be agreed as a condition of its giving the Article 50 notice.

Brexit: planning for the future as negotiations continue

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